A Critical Appraisal of the Legal and Institutional Arrangement for Wetlands Management in South Africa


 Policies and institutional frameworks are some of the entering points in mainstreaming the sustainable management of ecosystems such as wetlands. Wetlands are ecological systems that have been internationally acclaimed as natural and cost-effective mechanisms to mitigate disaster risks and address the negative impacts of climate change while providing local livelihoods. However, the continuous degradation of wetlands in many parts of the world including South Africa is concerning and this can be linked to ineffective legislative and institutional arrangements for wetlands management. Using questionnaires, key informant interviews and field observation, this paper assessed the legal and institutional frameworks for the sustainable management and conservation of protected, private and communal wetlands in South Africa. The results indicated that fundamentally there was no direct wetland legislation in South Africa and this is happening more than 47 years after South Africa signed and ratified the Ramsar Convention on the wise-use and conservation of wetlands. The results also indicated that there was poor coordination of important wetland stakeholders. Thirdly, there were many Expanded Public Works Programmes (EPWPs) with overlapping functions in the management of wetlands in South Africa The key recommendations were that a national policy on wetlands should be enacted in South Africa like is the case in Uganda and that all the EPWPs be unified under a single control structure with defined roles and monitoring systems like the case with Environmental Protection Authority (EPA) in the USA. The study further recommend that effective wetlands forums be put in place and the dysfunctional ones be rejuvenated. Lastly, policy makers should be made more conscious on the beneficial functions of wetlands in providing livelihoods, reducing disaster risks and adapting to climate change in South Africa


Introduction
Wetlands are " transitional land between terrestrial and aquatic systems where the water table is usually at or near the surface, or land that is periodically covered by shallow water and which in normal circumstances support or would support vegetation that is typically adapted to saturated soils" (Republic of South Africa 1998: 9). Wetlands are also "Areas of marsh, fen, peatland or water, whether natural or arti cial, permanent or temporary, with water that is static or owing, fresh, brackish or salt, including areas of marine water, the depth of which at low tide does not exceed six meters." (Ramsar Convention 1971 in Barbier, Acreman and Knowler 1997: 1). These two de nitions of wetlands point to the fact that wetlands are diverse ecosystems and can occur at different geographical areas. While the second de nition is very broad, it also poses a challenge in wetlands delineation.
Wetlands are important ecosystems in the lives and wellbeing of both rural and urban communities around the world. Well-functioning wetlands are green infrastructure that mitigate disaster risks such as oods, droughts, storms, res to name but a few. They also assist communities to mitigate and adapt to climate change. Besides, wetlands provide livelihoods for millions of people especially in the rural areas.
The way wetlands are managed depend largely on the legal and institutional arrangements for wetlands In South Africa there is actually no wetland protection Act and many legislations that address wetland management in South Africa are haphazard and uncoordinated in their implementation (Kidd 2011;Glazewski 2013 Kotze 2012), but they are also very sensitive ecosystems. The wise and sustainable management of wetlands depend to a great extent on the effectiveness of the legal and institutional frameworks that are in place in a country (RCS 2010). In South Africa, there is a problem with the legal and institutional framework that guide wetlands management, hence many wetlands have been degraded or lost and the situation is continuing unabated.
Two critical questions then are: How does the legal and institutional arrangement inform the sustainable management of wetlands in South Africa? Secondly, are wetlands su ciently protected so that they can sustainably provide ecosystem services especially regulatory services which help to reduce disaster risks and adapt to climate change in South Africa? Answers to these two questions will provide policy makers with evidence to rethink and formulate more effective legal and institutional frameworks for wise and sustainable management of wetlands in South Africa as well as other countries facing similar problems. A hybrid of both quantitative and qualitative approaches was adopted to address the ontology and epistemology of the research (Babbie et al. 2008). Mixed method (quantitative and qualitative) usually uses four popular approaches which include explanatory, exploratory, triangulation and embedded designs (Creswell 2014). The triangulation, parallel or concurrent mixed approach was applied as both the quantitative data from the questionnaire (composed mainly of closed-ended questions) and qualitative data from the interviews (with open-ended questions) and eld observation were collected at the same time before analysis.

Methods
Two sets of questionnaires were administered to private and communal wetlands users. For the purpose of assigning responsibility in wetland management to an identi able individual, two categories of wetland owners/users were identi ed. Where the owner of the wetland could be identi ed, such was classi ed as "private", meaning government protected wetlands (including those owned by conservation agencies like SANParks) were treated as private to distinguish them from communal owned wetlands, which are collectively owned. A total of 176 questionnaires, 93 for communal and 83 for private wetland users were administered and analysed.
Face to face and where impossible, telephonic interviews were used to gather data from three types of specialists and they included wetland specialists (n = 5), environmental and disaster management specialists (n = 8) and environmental law specialists (n = 2). A detailed eld observation was carried out on 21 randomly selected wetlands comprising seven communal wetlands and 11 privately owned wetlands. See Table 1 for a summary. Three protected wetlands (Seekoeivlei,Golden Gate and Braamshoek wetland) were also observed. A pilot study was conducted in six wetlands (two in protected areas, two in communal and two in privately owned properties) to obtain a proportional balance. In addition to the pilot study, three Master's and three PhD students as well as three senior researchers were recruited to comment on the data collection tools.
All these measures added validity and reliability to the collected data (De Vos et al. 2005). Participation in the research was voluntary, no names were required on the questionnaire to keep the respondents anonymous, due procedures were followed to obtain any document that was consulted and the ideas of other researchers were duly acknowledge in terms of embedded and nal list of reference. The researcher also obtained Ethical Clearance Certi cate from the University of Free State General Ethic Committee.
An Excel Spreadsheet was used to capture data and the SPSS was used to analyse the quantitative data. Qualitative data was inductively analysed into dominant themes that emerged from the raw data (Maree 2007).

Results
Regarding communal wetlands, more males (62.4%) than females (37.6%) completed the questionnaire. Field observations con rmed this split, since most often men were seen herding cattle in the communal wetlands. The median age of the respondents was 30-39 years and the majority were either unemployed or self-employed (63.4%). Most respondents (92.3%) had used the wetland for more than ve years. Though these were communal wetlands, only 36.6% could correctly state that they were communally owned. The socio-demographic data is summarized in Table 2 below. Most of the private wetland owners were male (80%) while (19.3%) were female. The majority of respondents (80.7%) were a median age of between 45-54 years. Many (77.1%) had used the wetland for more than ve years of which 60% had more than 10 years' experience. Most of the respondents (71%) had either an undergraduate or a postgraduate academic quali cation (see Table 3 belwo). Wetlands threat Wetlands threat are predominantly from human factors as indicated in Table 4 below. These are the main threats that account for 50% of wetlands in South Africa being lost. Good legal and institutional frameworks could reduce these threats

Wetlands laws and policies
Asked whether there were any laws that regulate the use of wetlands, 93.5% of the communal wetlands users responded that there was none (Table 5), while 68.7% of the private wetlands owners reported there were no clear laws. In the same line, 74% of the communal wetland respondents attested that if there were any laws, then these laws were poorly implemented as opposed to 69% for private users (Table 5). The two environmental law specialists cited the following challenges in implementing environmental law, which cover wetlands in South Africa: Lack of adequate capacity and resources both nancial and human.
Other considerations from the national government such as economic growth and job creation always undermine environmental considerations such as wetland conservation.
Poorly de ned environmental powers and functions that has always resulted in duplication of powers and functions such as where two different executives perform the same environmental function guided by different laws.
With speci c reference to wetlands, it was noted that the de nition of wetlands in the National Water Act was complicated, such that contrary to the law, construction usually takes place in wetlands. This situation may suggest lack of clear understanding of wetlands and laws related to wetlands or can be a symptom of violation of sectoral laws dealing with wetland conservation since there is no speci c law on wetlands in South Africa.

Wetlands stakeholders' cooperation and coordination
In terms of cooperation between wetland stakeholders, which included private land owners, the local community, the government and Non-Governmental Organizations, the general feeling amongst the respondents was that the cooperation was poor (Table 6). In the same vein, 77.1% of the communal wetland users indicated that wetland issues were not well coordinated. The Perception Index was calculated for the private wetlands owners and with a value of -0.94 (Table 6), it was clear that the legal and institutional arrangement for wetland management in the study area was poor.  (Fig. 1). Meanwhile, there are other important role players in wetlands management in South Africa with varying stake and in uence on wetland matters (Table 7).   Meanwhile private wetland owners in the study area had a better education and rich experience on wetland issues. This socio-demographic parameter had an impact on the wise and sustainable usage of wetlands as wetlands in private property were observed to be in a better ecological state than those in communal wetlands.
The interviewed environmental law experts identi ed ignorance, limited resources and lack of clari cation of roles among wetland stakeholder as risk factors, so they made some suggestions to alleviate the challenges on wetlands management in South Africa. These suggestions included capacity building and education on wetlands, the allocation of more nancial and human resources for wetlands management, the involvement of courts to clarify roles and functions related to wetlands and to minimize the duplication of functions. The duplication of functions and the sacri ce of wetlands in pursuit of economic growth and job creation was also identi ed during the analysis of the various "Working-For Programmes" under the Expanded Public Work Programme. The violation of related wetlands legislations like the National Water Act and the National Environmental Management Act (NEMA) was also identi ed during eld observations. A classic example was the building of the Frontier Casino and the Dithlabeng Mall on a wetland in Bethlehem, a project which went into litigation between the developers and conservationist.
Regarding the institutional placement of wetland issues, the Department of Environmental Affairs scored lower than the Department of Agriculture, Forestry and Fisheries (Fig. 1). Two possible reasons for this split could be that most of the respondents were farmers and therefore preferred their line department or that many were not satis ed with the services from the Department of Environmental Affairs which currently host wetland issues. The lack of trust between some private land-owners and the WfW on issues of wetland rehabilitation was identi ed during eld study and also reported by two out of the ve wetland specialists that were interviewed. This might support the placement change of the wetland function to the Department of Agriculture. However, the placement of wetland may not be the problem, but poor implementation of sectoral laws related to wetlands, lack of education, awareness and inadequate resources for better management of wetlands in the study area.
Inadequate legal and institutional arrangements expose wetlands to many threats in the study area. Top in the ranking was the lack of awareness on wetland bene ts, followed by uncontrolled re and then overgrazing ( Table 4). These results from the administered questionnaires collaborate with interviews conducted with key informants or experts on wetland issues.

The legal and institutional arrangement for wetland management
The lack of a directive policy on wetland makes wetland issues being addressed in a myriad of national sectoral legislations that are most often not properly implemented. The responses on wetland laws were in line with the reviewed literature on legal and institutional arrangements for wetland management, which indicated that there was no national wetland policy in South Africa. The National Environmental Management Act (NEMA), the Conservation of Agricultural Resources Act (CARA) and the National Water Act (NWA), which were the closest identi ed sectoral legislations, did not address wetlands issues speci cally and even where they did, the implementation of these laws were problematic for reasons that varied from ignorance, lack of competent implementers, lack of enforcement of the laws and lack of resources for effective implementation. This was con rmed in the eld observation and by the environmental law experts. The legal status of wetlands in South Africa is different from that of a country like Uganda, which besides having wetland related legislations (like the NEMA and NWA in South Africa), the clearing of alien and invasive species. Now the question is "whose responsibility is it to deal with invasive and alien species located in a wetland?" Though WfW could clear such invasive species as part of wetland rehabilitation, there is a clear overlap of function in this case and enough fund may not be available for WfW to effectively meet its assigned primary responsibilities. Many private wetland owners complained and eld observation supported that invasive species were a problem in the study area ( Fig. 2). The balance of rehabilitating wetlands and creating local jobs is also challenging to wetland managers in the study area. The scale may nally tilt toward one side given limited nancial resources and high unemployment rate in the country. Political interference was also reported in the operational activities of these EPWPs. The process of selecting wetland for rehabilitation is also not clear (Kotze 2009) .The DEA is overloaded with national responsibilities given that it deals with many broad environmental issues including climate change withlimited nancial and human resources.
Proper management of wetlands involves many stakeholders. A stakeholder in wetland management means any individual, group or community living within the in uence of the site, and any individual, group or community likely to in uence the management of the site. This will obviously include all those who are dependent on the wetland for their livelihood (Kotze et al. 2009). Effective wetland management must encompass the past and present human use of the wetland, the current and future impacts, as well as ways that sustainable wetland use can be achieved (Chatterjee et al. 2008). The best way to achieve this is through integrated wetland management. Integrated wetland management brings various wetland stakeholders together, who then develop a vision, agree on shared values and behaviours, makes informed decisions and act together to manage the wetland. The success hinges on the willingness of sectoral stakeholders to work together since effective management of wetlands requires a multidisciplinary approach that integrates technical, economic, environmental, social and legal aspects of natural resources management at catchment scale (Wageningen International 2009). Such a wellcoordinated approach is key for the wise and sustainable management of wetlands. The sustainable wetland management approach is holistic and is bottom-up but in the case of Sourh Africa, the approach is top-down dominated by EPWPs especially the WfW.
The identi ed wetland stakeholders had varying degrees of in uence and interest on wetlands affairs (

Recommendations
The government through the Department of Environmental Affairs should draft a national wetland policy that can be applicable to all spheres of government (local, provincial and national). There is currently no national policy on wetlands while related sectoral policies such and the National Environmental Management Act and the National Water Act are poorly implemented or do not correctly apply environmental tools such as the environmental impact assessment (EIA), strategic environmental assessment (SEA), and cost bene t analysis (CBA) before deciding on alternative uses of wetlands.
The government should also harmonise the functioning of the various "Working For" programmes under a uni ed command structure. Such a structure could be an independent para-public structure linked to the ministry of Water Affairs and Sanitation or the Department of Environmental Affairs. These EPWPs should also be well resourced in order for them to create more jobs and also accomplish their assigned environmental tasks.
It is recommended that a properly constituted platform for the coordination of all wetlands stakeholders at local, provincial and national level be created or revived. These platforms should include representatives from the Department of Environmental Affairs, Department of Water Affairs and Sanitation, Department of Agriculture, Private wetlands owners and users, local chiefs and traditional leaders, conservationists, environmentalists, Department of Education, Academia and researchers and other identi ed role players. Participation by stakeholders in these wetland forums should either be a line function or community service imperatives and be evaluated during performance appraisals by respective line managers. A good start will be to re-establish a regulated provincial wetlands advisory forums with an allocated budget.
At international level, there is need to build synergy and nd common approaches among conventions   Invasive species in a wetland in Harrismith-Van Reenen Pass.